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Michael Swain
On Thursday, 19 October 2017, the South Gauteng High Court ruled that the common law defence of reasonable and moderate chastisement is unconstitutional and no longer applies in our law. This means that from now on, it is illegal for parents to apply any form of physical discipline to their children (no matter how light or well-intended). Parents who disobey the law and continue to spank their children, may be charged with assault and face criminal prosecution.
Freedom of Religion South Africa (FOR SA), who was invited by the court to make submissions as a "friend of the court", argued in favour of reasonable chastisement on the basis that millions of Christians (and indeed persons of other faith groups) believe that the Scriptures permit (if not command) reasonable and appropriate correction of their children.
FOR SA argued further that parental discipline is an important part of parents' duty to ensure their children are brought up as responsible human beings with a sense of right and wrong, and that it is therefore ultimately for the child's good and in his/her best interest.
According to Judge Keightley, "the notion of parental power and the view that children owe a duty of obedience to their parents" are "at odds with the child-focused model of rights envisaged under our Constitution".
In her opinion further, this is a case where "it is permissible to require religious parents who believe in corporal punishment to be expected to obey the secular laws, rather than permitting them to place their religious beliefs above the best interests of their children."
Serious inroads into religious freedom and parental authority
FOR SA deplores the high rates of child abuse and domestic violence in South Africa, and strongly condemns any form of violence against children. Every child, regardless of race or culture, is created in the image of God and is therefore infinitely valuable and has immense human dignity.
There is however a fundamental and obvious difference between violence and abuse, and reasonable and moderate chastisement in love. It is unfortunate that the judgment does not recognise this distinction which is also recognised by the social sciences, and considers chastisement in all circumstances to be detrimental and harmful to children.
We are also concerned that the judgment makes serious inroads on parental authority, as well as on the freedom of millions of South African parents who believe that reasonable and moderate physical chastisement done from time to time, always in love, is in the best interests of their children.
Although the judgment states that "as far as possible, parents should not be criminalised", in law it is possible that criminal sanctions may be imposed and children who are considered to be at risk of abuse or violence in the family home, may be removed from their parents.
The judgment also sets a very dangerous precedent for other cases where children's rights have to be weighed against parental and religious rights.
For example, in the context of transgender issues, it is quite foreseeable that this case will be used as authority to insist that parental caution and concern be overruled in favour of a young child's desire for hormone suppressant treatment and gender reassignment surgery. Yet there is a clear recognition in law that a child does NOT have equal rights to an adult – hence the age of consent for sexual activity, the age of voting, laws against drinking and smoking before a certain age, etc.
'Judicial activism at its best'
In its submissions to the court, FOR SA pointed out that unless it was found on appeal that the appellant (the Muslim father who had been convicted of common assault of his child in the Magistrate’s Court) had acted within the bounds of the common law defence, the constitutional issue was academic and should not be considered any further. Judge Keightley did not agree and found that the "interests of justice" require a consideration of the constitutional issue.
While high courts have a constitutional obligation to develop the common law in line with our Constitution, FOR SA's concern is that the judgment is an over-reach and effectively usurps the power of Parliament who has primary responsibility for law reform.
In this regard, we point out that when deliberating the Children’s Act in 2005, Parliament, as the democratically elected representatives of the people of South Africa, made a deliberate and considered decision to retain the right of parents to reasonably and moderately chastise their children, as part of SA law.
With a stroke of a pen, the court has now effectively overruled the legislature's decision and circumvented the legislative process. This is judicial activism at its best.
The sad fact is that, as a result of this "spanking judgment", significant amounts of taxpayers' money will now be directed into training interventions and court cases involving potentially responsible parents and families that are not at risk, when it should be directed towards those families and communities that have already been identified as truly in need of such interventions.
The utilisation of government's time and budget to address "corporal punishment" cases will effectively increase the risk to already identified children and families who are at risk, making them even more vulnerable with less resources to intervene in those cases.
The appellant has three weeks from date of judgment to apply for leave to appeal the judgment to the Supreme Court of Appeal in Bloemfontein. FOR SA itself is studying the judgment carefully with a view to a possible appeal.
- Michael Swain is executive director of FOR SA.
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